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Australian The Law Report consumer law is with Peter Kirsop tough on the fine print •

BY:CHRIS GRIFFITH

From:The Australian (This article was published in the Australian recently & it is very good & is very topical. It is worth reprinting) AUSTRALIAN consumer law Peter KIRSOP B.A., LL.B, Acc Spec (Prop) is tough on companies that of MRM Thompson Norrie Lawyers, leave qualifying statements Maitland about products to the fine print. That's why Apple is in trouble fending off legal action by Australia's consumer watchdog over its branding of its mobile network enabled new iPad as "WiFi + 4G". Apple's "WiFi + 4G" model offers fourth generation mobile coverage on some of North America's 700 MHz 4G networks in the US and Canada. But its 4G capability is useless on Australia's 1800 Mhz 4G long term evolution (LTE) networks. On its Australia website, Apple addresses this concern in a fine-print disclaimer for prospective buyers of its 4G model. "The iPad with Wi-Fi + 4G model can roam worldwide on fast GSM/UMTS networks, including HSPA, HSPA+, and DC-HSDPA," the disclaimers says. "When you travel internationally, you can use a micro-SIM card from a local carrier. You can also connect to the 4G LTE networks of AT&T in the U.S. and Bell, Rogers, and Telus in Canada." The problem for Apple is that such disclaimers in Australia don't necessarily mitigate legal action about alleged misrepresentation under consumer case law. This point and the strict nature of Australian consumer law seem to be understood by Telstra and Optus who are not branding the new iPad overtly as a 4G device on their website advertising. Telstra is branding the device as "the new iPad on our data and tablet bundle" while Optus advertises it as a "WiFi + 3G" device having given up on billing it as a 4G iPad altogether. Optus is about to roll out its 4G LTE network starting in some regional areas soon. The exception is Vodafone which doesn't have any 4G network yet still brands the new iPad as a "WiFI + 4G" device on its website. Following a court hearing Apple says it will offer customers a refund if they believed their new iPad was capable of running on Telstra's 4G LTE network. Its lawyer said that "for the sake of absolute clarity", Apple would place a clarifying statement at the point of sale "making it plain that there is no claim

made in relation to the device that it is capable of connecting with the Telstra 4G LTE network". Apple has also agreed to send clarifying emails to customers who bought the new iPad. But it's resisting moves to force it to put stickers on its packaging and publish corrective advertising. This case law about fine print not absolving misrepresentation was a factor earlier when the ACCC took legal action against retailer Harvey Norman who in 2010 promoted the sale of 3D television sets with the promise buyers could watch the 2010 AFL and NRL grand finals in 3D. But the 3D broadcasts were not available throughout Australia and Harvey Norman's conduct was found to be "seriously misleading and deceptive". In the Harvey Norman case, the Federal Court found that "fine print is not an antidote to misleading or deceptive conduct". It was pretty obvious then that the ACCC would take an active role in this issue once it received consumer complaints. University of NSW consumer protection law expert Michael Handler said Apple could face problems if the ACCC and ultimately the courts, decided the average local buyer may not understand that the 4G-branded iPad did not work on 4G networks here. The key legal argument then and now revolves around what a court thought the average Australian buyer understood. Cheers, Peter


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